Oakeshott and the Separation of Powers

Professor Fuller has provided a very helpful outline of Oakeshott’s conception of the rule of law. The British philosopher is at some of his most difficult here. But this is not to say that Oakeshott is ever easy. For readers educated in the English-speaking world, Oakeshott is challenging on a number of levels. He forces us to rethink many of our unquestioned fundamental assumptions: our dogmatic empiricism, our foundationalism (especially in epistemology and political philosophy), our belief in the importance of theory to practice, our moral doctrinalism, our acceptance that politics is a matter of Left versus Right, our belief that society has a substantive purpose, and our belief that historicism entails relativism. When confronted with such foreign ideas, one should remember Hegel’s admonition: “Nothing is easier than to judge what has substance and quality; to comprehend it is harder; and what is hardest is to combine both functions and produce an account of it.”

To those who have read much of Oakeshott’s work, it comes as a shock when in “The Rule of Law” he mentions John Rawls, Ronald Dworkin, and even Bruce Ackerman in a footnote. Throughout his writings, Oakeshott rarely mentions contemporary figures nor does he use the then-prevalent terminology (e.g., perfectionism, contractarianism). Academics have returned the favor; there are few mentions of Oakeshott in the entire Lexis-Nexis database of law journals. Likewise, a recent book congenial to the idea of law as non-instrumental does not mention Oakeshott a single time. But since his death in 1990, Oakeshott’s ideas are drawing increasing attention. More scholars are starting to see why The Daily Telegraph obituary hailed him as “the greatest political philosopher in the Anglo-Saxon tradition since Mill—or even Burke.”

Oakeshott can be forgiven for his indifference to his academic coevals since he was operating on an entirely different plane. He is offering not a mere philosophy of politics or of this or that, but a coherent vision of life—namely, one unified by a sceptical idealism revolving around the self-enacting and self-revealing individual. And not only is he presenting an entire vision, he does so with wide cultivation and profound historical understanding, and often in a poetic style that shows him to be one of the great essayists in the English language. While he admires the ideas of Montesquieu and Benjamin Constant, his heroes are Augustine, Don Quixote, and Montaigne—figures not usually welcome in a philosophy department.

Oakeshott’s views must seem all the more alien to Americans. Oakeshott criticizes the Declaration of Independence and Bill of Rights for being ideological, for being ground in abstract principles. Ideologies, he contends, are always abridgments of actual practice. Although they might make explicit some of what was implicit, ideologies necessarily leave out much of what is important since it is impossible to articulate every aspect of a practice. Practices are akin to vernacular language: the rules of grammar and syntax can never tell one how to write a beautiful sentence. Ideologies as rulebooks for practice can be nothing more than cribs—thus their dangerous popularity with the inexperienced and unwise. All of this holds not just for political ideologies but for moral ideologies, such as Utilitarianism. They ignore the fact that nearly all practical decision-making is deliberative, not demonstrative; it is a matter of judgment.

It was also a mistake, Oakeshott thinks, for the Founding Fathers to have grounded those ideologies in natural rights. He contends we can have no knowledge of indubitable super-human truths. (Oakeshott praises religion, but says that God’s nature is inherently unknowable. Faith is a gift.) In any case, whether or not one agrees with this epistemic claim, it is undeniable that the diversity of individuals in modern Europe prevents consensus regarding such truths. And even if such unconditional abstractions as natural rights or natural law are recognized or postulated, they are always indeterminate in practice—hence the endless debates as to their application.

Oakeshott identifies another flaw in American’s founding documents. By enumerating natural rights in an unconditional Fundamental Law, the Bill of Rights has led to more and more claims of new rights against the state. The slope has been especially slippery in constitutions written subsequent to the American one, constitutions that include rights to work, social security, housing, health, and education. (See also the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.) A consequence of this predictable multiplication of “natural” rights is that the state increasingly appears to be a failure—a menacing prelude to anarchy.

Oakeshott also enjoys pointing to where John Locke, widely seen as the ideologist of American-style liberalism, allegedly went astray. Locke gave modern liberalism its “gospel and creed,” but that moderate, bourgeois theology, with its emphasis on the “plausible ethics of productivity,” was or had become boring and uninspiring (at least by 1932). [CPJ 84, 85] Oakeshott finds the acquisitiveness of Locke’s liberalism distasteful; he also rejects economism in political thought generally (whether that of Locke, Marx, or Hayek).

Oakeshott also insists that any plausible political philosophy requires a grounding in an epistemology (as Hobbes achieves), yet Locke never ties his liberalism to his common-sense empiricism. Where does Locke’s knowledge of Natural Law come from? Oakeshott claims that not enough credit has been given to the influence on Locke of then-current Christian belief: “For example, private property antedates civil society for Locke because it sprang directly from the Fall (man had to work and labour creates property); civil society appeared only with Nimrod, many years after.” [CPJ 314]

Oakeshott also faults Locke for misunderstanding civil association by attributing to the “Executive (and not to the Judicial Authority) ‘the power which should see to the execution of laws.’” [OHC 245] What does Oakeshott mean by this? Examining his understanding of the separation of powers helps shed light on his conception of the rule of law.

For Montesquieu, the separation of powers is a prudential arrangement intended to protect liberty. While it might have this benefit in reality, for Oakeshott, the separation of powers is a conceptual distinction that necessarily follows from the rule of law. The most important distinction is that between the legislative and judicial offices. The aim of the former is lex, laws passed or held in custody in accordance with the rule of law. (Oakeshott uses Latin terms such as as lex and jus to harken back to the genius of Roman law; they also avoid the baggage encumbering such terms as “law” and “justice.”) The legislative office need not be the source of all law, which might include what the Romans called mos majorum and the English the “common law,” but it must always have the ability to appropriate or alter that law, no matter how traditional or ancient.

The authority of the legislative office is justified not by its “justice” but by its authenticity: the office is the creation of law, its office holders are appointed by law, and the laws it promulgates or leaves be are non-instrumental (they serve no ends or interests): “That ‘law regulates its own creation’ is not a paradox but a truism.” [OH 151] (Oakeshott thus avoids the alleged paradox of sovereignty: How is it possible for a sovereign to limit itself? Indeed, Oakeshott views political philosophy’s longstanding emphasis on sovereignty to be a mistake.) Examples of inauthentic legislators are usurpers and tyrants: “A usurper may have the disinterested persona required of a legislator but he cannot make authentic law because he does not properly occupy the legislative office. A tyrant may properly occupy the office but he uses his occupation to promote interests, chiefly his own, and there does not make genuine law.” [OH 151] “Law” that lacks authenticity is not lex.

Oakeshott continues that because of laws’ non-instrumentality, generality, and adverbial nature (e.g., the prohibition on murder must be understood as something like Do not kill murderously), they are unavoidably indeterminate. To determine how laws apply to contingent situations is the duty of the judicial office. That office necessarily examines only actual cases and controversies; no conclusions can exist for imaginary or conjectured situations. Adjudicators apply the (general) laws to a particular occurrence by distinguishing that occurrence from others—a procedure Oakeshott calls “retrospective casuistry.” The process is “devious” but unavoidable.

The judicial office pays no attention to the interests of the parties, nor does it speculate as to the intentions of the legislators; to do so would be to make law, which is beyond its authority. Similarly, it ignores any appeals to a “public interest,” substantive or unconditional rights, or its own subjective understanding of what is “just” (strictly speaking, being composed of personae, it has no such understanding). However, an adjudicator may in limited circumstances invoke prudential considerations—for example, in deliberating the application of a law that requires a mandatory penalty. Earlier judicial decisions may be taken into account, but there is no such thing as binding precedent. Instead, what may be taken into consideration are distinctions previously made as they are relevant to the reasoning by analogy in the case at hand. Since Oakeshott holds that it is impossible for lex to include any substantive Fundamental Law, he rejects judicial review, which necessarily consists in legislating from the bench. While there can be no appeal to a higher law, one can appeal to a “fundamental law” that consists in the integral requirements of law as such—e.g., no secret or ex post facto laws.

What role then for the executive office? The executive has mere circumscribed “power”: it may compel the actions commanded by an adjudicator, and it may detect and “prosecute alleged illegalities and to forestall imminent breaches of the law.” [OH 161] It is the administrator of judicial decisions and the custodian of the peace. Thus, we understand the sense by which Oakeshott means that the executive does not execute the law.

Lest Americans dismiss Oakeshott out of hand for his critiques of Locke, natural rights, and judicial review, note that, as Professor Fuller mentioned, he does praise the U.S. Constitution for being the most sceptical of its kind. He also credits the Founders, particularly James Madison in the Federalist Papers, with being infused by the spirit of civil association. In any event, were he an American, Oakeshott might say in his apology that a creedal nation can be tempered by its heretics.

In the end, Oakeshott’s ambition is small: he aims to show that an alternative to the idea of a state organized for some purpose is conceivable. Another ideal exists, even if it is impossible to fully achieve in practice. He hopes to have convinced us that a sceptical jurisprudence is self-justified and coherent, that no certain foundations are necessary.

A graduate of Yale Law School, Justin Shubow works at the intersection of law and social media in Washington, D.C. He is the author of The Gehry Towers Over Eisenhower: The National Civic Art Society Report on the Eisenhower Memorial.

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